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Mt. Badrunnissa and ors. Vs. Municipal Board - Court Judgment

LegalCrystal Citation
Subject Municipal Tax
CourtAllahabad
Decided On
Reported inAIR1939All510
AppellantMt. Badrunnissa and ors.
RespondentMunicipal Board
Excerpt:
- - 4. as regards the point of limitation learned counsel has failed to show that the suit would be in any way barred by limitation. he has also failed to prove in what way the appellants are owners of this house as their father defendant 1 is still alive. 6 was that the municipality had failed to supply sufficient water for domestic purposes, and ground no. municipal board, jhansi reported in air1939all212 .learned counsel for the appellants has failed to show that the decree of the court below is incorrect......the daughters are both married and were defendants 5 and 6. the suit was brought by the municipal board of agra against nizam-ud-din alone in the first instance and was a suit for recovery of rs. 288 comprising rs. 108 house-tax and rs. 180 water-tax for the period 1st october 1922 to 30th september 1934, the date of suit. nizam-ud-din did not defend the suit. the sons and daughters made some claim that they were also owners of the house and an application for their names to be added was made on 12th august 1935 by the plaintiff on the ground that they were also owners and their names were added. the trial court decreed the suit for rs. 238. the defendants appealed and the municipal board made a cross-objection claiming the full amount rs. 288 which has been decreed by the.....
Judgment:

Bennet, J.

1. This is a second appeal by two daughters and two sons of defendant 1, Nizam-ud-din. The daughters are both married and were defendants 5 and 6. The suit was brought by the Municipal Board of Agra against Nizam-ud-din alone in the first instance and was a suit for recovery of Rs. 288 comprising Rs. 108 house-tax and Rs. 180 water-tax for the period 1st October 1922 to 30th September 1934, the date of suit. Nizam-ud-din did not defend the suit. The sons and daughters made some claim that they were also owners of the house and an application for their names to be added was made on 12th August 1935 by the plaintiff on the ground that they were also owners and their names were added. The trial Court decreed the suit for Rs. 238. The defendants appealed and the Municipal Board made a cross-objection claiming the full amount Rs. 288 which has been decreed by the lower Court which granted a preliminary decree under Order 34, Rule 4 against the house in question. The liability of the house for the arrears of tax is claimed to be under Section 177, U.P. Municipalities Act of 1916. The first ground of appeal is that the appellants not being entered in the assessment register they were not liable to be taxed, and the second ground is that no bill having been presented to' the appellants or notice of demand sent to them the suit was not maintainable. Along with these grounds learned Counsel argued the question of limitation although no plea of limitation was made in the Courts below, nor has he taken the point specifically in his grounds of appeal. The demand in this case is on account of house-tax Rs. 108 which comes under Section 128(1)(i) as 'a tax on the annual value of buildings or lands or both,' and the demand of Rs. 180 as water tax is on account of the public supply of water by a stand post within the prescribed limits from the house and this tax comes under Section 128 (1)(x) as ' a water tax on the annual value of buildings or lands or both.' Section 177 provides:

All sums duo on account of a tax imposed on the annual value of building or lands or of both shall, subject to the prior payment of the land revenue (if any) due to His Majesty thereupon, be a first charge upon such buildings or lands.

2. Both the taxes in question come under Section 177 as in each case the tax is imposed on the annual value of the building. The case is one therefore for the enforcement of a charge on the building. Learned Counsel for appellants referred to the provisions of Sections 166, 167 and 168. Section 166 begins:

As soon as a person becomes liable for the payment of: (a) any sum on account of a tax...the Board shall, with all convenient speed, cause a bill to be presented to the persons so liable.

3. Section 167 provides for the contents of the bill and Section 168 provides for a notice of dem and if the bill is not paid within 15 days from its presentation. These Sections are the procedure preliminary to the issue of a warrant under Section 169 for the distress and sale of the moveable property of the defaulter. If the Board had desired it could have used this procedure in the present case and in that case it would be necessary for the Board to prove that the warrant had been preceded by the proper preliminaries. But the Board has not chosen to employ this procedure against the moveable property of the defaulters. The Board has brought a suit under Section 177 to enforce the charge on the building and it is not required by Section 177 or any other Section that there should be any bill or demand. It is further to be noted that the pleading that there was no notice of demand or distress warrant was only made by two of the seven defendants, that is defendants 5 and 6 who are two of the appellants. These particular two defendants are daughters of defendant 1 and they are married women and it is not alleged that they are living in the house. On the other hand defendant 1 is living in the house and he was the person who was entered in the assessment register. The bill and the notice of demand would naturally issue to the person who was entered in the assessment register and there is no allegation in the present case that that procedure was not followed. The argument of learned Counsel apparently is that a Municipal Board has the duty of ascertaining who are all the owners of any particular building and that no taxes can be collected until each and every possible owner has been served with a notice of demand. Learned Counsel has been unable to show anything in the Act which would support such a view. On the contrary, Section 141 for the preparation of the assessment list states that when a tax on buildings or lands is imposed the assessment shall show '(c) the name of the owner and occupier, if known.' It is not laid down that the names of every owner and occupier of the building should be entered. Section 142 provides for persons claiming to be owners or occupiers of property included in the list to have a right of inspection and to take extracts from the list without charge, and under Section 143 there is a date fixed by public notice by the Board for objections to be considered. It was possible for defendants 4 and 5 to have made a claim that their names should be entered in the assessment list and they did not do so. Accordingly therefore as they did not claim to be entered and did not get this entry they cannot have any grievances that they did not receive notice in this matter.

4. As regards the point of limitation learned Counsel has failed to show that the suit would be in any way barred by limitation. He has also failed to prove in what way the appellants are owners of this house as their father defendant 1 is still alive. On the adjourned date on the instructions from the pairekar learned Counsel suggested that the house had been originally owned by the mother and that she died and that the father and the family had inherited from the mother. That may be so but it has not been proved. I do not think that the mere fact that the Municipal Board applied for the adding of the names of these defendants is of any importance. Naturally as the Municipal Board became aware that they were claiming a share in the house the Board desired that they should be added as parties to this suit. The suit in my opinion was properly brought against defendant 1 who was entered as the owner of the house and in any case he would naturally be the agent of his sons and daughters. On the point of limitation learned Counsel contended that the proper Article was 120, the residuary Article for six years period. But the proper Article is Article 132: 'To enforce payment of money charged on immovable property,' and the period is 12 years from the time when the money sued for becomes due. The claim is within 12 years of the date of the suit and the house is undoubtedly liable for the whole of that period. The mere fact that the suit was brought in 1934 against the name of the lather and in 1935 the names of the children of this Mahomedan family were also added does not in my opinion in any way make the property free from liability. It appears to me that it will be quite impossible for a Municipality to transact its business if it was required to ascertain the name of each and every owner of the property on which the taxes were assessed. For example on such a theory every time iihere was a birth in a Hindu joint family of a son, the name of that son would have to be added in all the proceedings for demand of taxes.

5. Ground No. 5 was that the register of the Municipal Board summoned by the Civil Judge in appeal and relied on by him was not duly proved and was not admissible in evidence. Now this particular register was produced by a witness in the trial Court and was proved in proper manner. The witness supplied a copy for the use of the Court from this register and in this copy the figure of Rs. 180 was correctly entered for the water-tax, but in his deposition the witness stated that the figure should be Rs. 130. As there was a discrepancy between the copy supplied by the witness and the figure in the evidence of the witness the lower Appellate Court sent for the register to ascertain which figure was correct. The register was duly produced before the Court by an official of the Municipality and on inspecting the register the Court found that the figure Rs. 180 was correct and that the figure Rs. 130 was an error. As the register had been duly proved in the, trial Court and was a document exhibited by the Court, the mere fact that it had been returned to the custody of the Municipal Office did not prevent the lower Appellate Court from inspecting it in the same way as it would inspect any document duly proved which had remained on the record. I do not think that there was any irregularity in the procedure of the Court below and no objection was taken to its procedure at the time.

6. Ground No. 6 was that the Municipality had failed to supply sufficient water for domestic purposes, and Ground No. 7 is that the Municipality had not supplied a water connexion to the house in question. As regards the supply of water on a private connexion Section 228(1)(b) states that the Board is bound to allow the owner or occupier of buildings to have a connexion, and Sub-section (2) refers to rules under Section 235 for the interpretation of the word 'prescribed.' Whatever claim the defendants might have in regard to the non-supply of water to the house under this Section 228(1)(b) might have formed the subject of a counterclaim, but no such counterclaim has been formulated and the merits of this question have not been tried or enquired into by the Courts below and cannot form any ground for releasing these defendants from costs as learned Counsel now urges. As regards the supply of water in the stand pipes under Section 228(1)(a) there are rules for municipalities laying down the duty of each municipality in this connexion. The Court below has found:

I have also gone through the evidence and am of opinion that the public stand post did not supply sufficient water, especially in summer, and there was irregularity in the hours of supply.

7. The Court however has not mentioned any rules laying down what quantity of water is to be supplied and for what hours and learned Counsel for the appellants has not been able to show from the Municipal register in regard to the supply of public water that there has been any infringement -of those rules. For the opposite party a copy of these rules is present in Court. I do not think therefore that any ground has been established such as is set forward in ground No. 6 of the appeal. Ground No. 10 dealt with the interpretation of a receipt Ex. D. The Court below has gone into this question of the interpretation of the receipt ?and the evidence of the Municipal register and has come to a conclusion of fact that Rs. 180 was owing. I do not think that this point can be raised in second appeal because it is a question of fact. In Narendra Nath Dutta v. Abdul Hakim (1928) 15 A.I.R. P.C. 243 it was laid down:

Again the mere fact that a writing has to be read and understood in order to determine the answer to the question does not of itself make the question one of law.

8. I may refer to two rulings of Benches of this Court in which it was held that suits did not lie against a Board in regard to the supply of water. One of these is from Agra, namely Kashi Nath v. Municipal Board, Agra reported in : AIR1939All375 the other is from Jhansi, Brij Behari Lal v. Municipal Board, Jhansi reported in : AIR1939All212 . Learned Counsel for the appellants has failed to show that the decree of the Court below is incorrect. Accordingly I dismiss this second appeal with costs. As points of law have been raised, permission is granted for a Letters Patent appeal.


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